Citation Nr: 0006907 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 94-29 196A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased evaluation for postoperative residuals of a fracture of the left femur, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from April 1965 to April 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a November 1993 RO rating decision that increased the evaluation for postoperative residuals of a fracture of the left femur from zero to 10 percent. In April 1998, the Board remanded the case to the RO for additional development. FINDING OF FACT The residuals of a fracture of the left femur are manifested primarily by minimal to no evidence of leg length discrepancy, and slight limitation of external rotation without associated pain or weakness; more severe symptoms, such as limitation of abduction with motion loss beyond 10 degrees, limitation of flexion to 30 degrees or less, or malunion of the femur is not found. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for postoperative residuals of a fracture of the left femur are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71, Plate II, 4.71a, Codes 5252, 5253, 5255 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background The veteran had active service from April 1965 to April 1968. Private medical reports show that the veteran sustained a fracture of the femoral shaft of the left leg in an automobile accident in December 1965 while in service. He underwent an open reduction and internal fixation with intramedullary Kuntscher nail at that time. A June 1970 RO rating decision granted service connection for residuals of fracture of the left femur. A zero percent rating was assigned for this condition, effective from June 1969. The rating remained in effect until the November 1993 RO rating decision increased it to 10 percent, effective from September 1993. VA medical reports show that the veteran was treated and evaluated for various conditions in the 1990's. The more salient medical reports with regard to the claim for an increased evaluation for the residuals of a fracture of the left femur will be discussed in the following paragraphs. The reports of the veteran's outpatient treatment indicate that he was seen primarily for unrelated conditions. The veteran underwent a VA medical examination in November 1993. He complained of pain in the mid-thigh region of the left leg that radiated to his hip and knee. It was noted that he took no medication for the residuals of a fracture of the left femur. There was a well-healed postoperative scar along the lower third of the left femur. There was no evidence of keloid formation. There was no evidence of discoloration of the scar. There was approximately 2 centimeters of left quadriceps atrophy. The range of motion of the left hip appeared to be within normal limits. The range of motion of the left knee was within normal limits. There was no evidence of angulation or false motion of the left leg. He was able to stand and walk on his toes without difficulty. He was able to squat down without difficulty. The assessment was history of fracture of the left mid-femur with residual muscle atrophy, pain, and discomfort especially during damp and cold weather. The veteran testified at a hearing in December 1994. His testimony was to the effect that he had left hip pain that produced functional impairment and that the postoperative residuals of the left femur fracture were more severe than currently rated. He stated that he had no problems at work due to these residuals. The veteran underwent a VA medical examination in December 1996. It was noted that he had undergone surgery for a left femur fracture in service and had been fully functional with the left leg since then. There was a very slight limp on the left foot in more external rotation. There were well-healed surgical scars of the left lower extremity. Motor function was grossly normal throughout both legs. Right and left leg lengths were the same. The left hip extension was to zero degrees, flexion was to 120/130 (left/right) degrees, abduction was to 20/30 degrees, flexed external rotation was 80/60 degrees, and flexed internal rotation was -5/15 degrees. There was no erythema, induration or tenderness over the left thigh. X-rays revealed a well-healed left distal femoral diaphyseal fracture in anatomic alignment. There was a Kuntscher rod within the medullary canal. The rod protruded approximately 1 centimeter above the top of the greater trochanter with moderate heterotopic ossification around the top of the rod. The assessments were well-healed left femoral shaft fracture; mild chronic non-disabling left thigh pain, especially with excessive activity and with cold wet weather secondary to the femur fracture and medullary rodding; and slight external rotation malalignment. It was noted that the rotational deformity caused no functional disability. The veteran underwent a VA medical examination in August 1998 pursuant to the April 1998 Board remand in order to determine the severity of the postoperative residuals of a fracture of the left femur, including severity due to functional impairment. He reported doing quite well following surgery for a fracture of the left femur, but that in the past year he began having slight increase in left hip and knee complaints, mostly consisting of stiffness with some increasing and progressive pain in the left knee. Examination of the lower extremities revealed his right leg as measured from his anterior superior iliac spine to his medial malleolus as 100.5 centimeters and his left leg measured 100 centimeters. Thigh circumference was 53 centimeters on the left and 54 centimeters on the right as measured at a point 15 centimeters proximal to the superior pole of the patella. Ranges of motions of the left hip were zero degrees of internal rotation, 20 degrees of external rotation, zero degrees extension, and abduction to 20 degrees. There was no evidence of erythema, warmth or tenderness of the left hip. Examination of the left knee revealed full extension with flexion to 115 degrees. The left knee revealed no evidence of effusion, warmth or induration. There was mild joint line tenderness on the left knee. There was no evidence of instability of the left knee. There was full range of motion of the left ankle without tenderness. Examination of the left foot/thigh angle revealed 15 degrees of external rotation, compared to 7 degrees on the right with slight increase in external rotation of the left with respect to the right. X-rays of the left hip, femur, and knee taken in conjunction with the above examination showed excellent alignment of the left femur with significant callus formation at the presumed fracture site that was completely healed. The nail remained in place and there was no evidence of nail failure. There was slight heterotopic calcification over the proximal aspect of the piriformis fossa at the entry site of the nail and the nail was prominent by approximately one centimeter at its entry site. There was mild joint space narrowing of the hip joint that had not progressed since previous X-rays. There appeared to be minimal joint space narrowing of the left knee joint. The diagnosis at the above examination was well-healed fracture of the left femur with excellent alignment and minimal to no evidence of leg length discrepancy with mild external rotation of the left lower extremity with respect to the right. The veteran did not walk with any significant limp, and it was noted that he had a noticeable external rotation type gait of both lower extremities with the left foot slightly externally rotated with respect to the right. There did not appear to be any foot discomfort or foot abnormalities resulting from the slight external rotation of the left foot. There were some complaints of mild medial joint line tenderness on the left lower extremity that most likely were due to primary degenerative changes associated with aging. In addition, there may be some discomfort associated with the presence of an intra-medullary nail in his thigh, but this did not seem to be a significant hindrance or significant complaint of his having had intra- medullary nail for over 25 years. The evidence of mild degenerative joint disease of the hip appeared to be most likely related to osteoarthritis due to aging. B. Legal Analysis The veteran's claim for an increased evaluation for postoperative residuals of a fracture of the left femur is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45. Limitation of flexion of the thigh to 45 degrees warrants a 10 percent evaluation. A 20 percent rating requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5252. Limitation of rotation of the thigh warrants a 10 percent rating when toe-out of the affected leg cannot be performed to more than 15 degrees. Limitation of adduction of the thigh warrants a 10 percent rating when the legs cannot be crossed due to the limitation. Limitation of abduction of the thigh warrants a 20 percent rating when motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Code 5253. Malunion of the femur warrants a 10 percent evaluation when the disability results in slight knee or hip disability. A 20 percent rating requires that the malunion produce moderate knee or hip disability. 38 C.F.R. § 4.71a, Code 5255. The standard ranges of motion of the hip are zero degrees extension, 125 degrees flexion, and 45 degrees abduction. 38 C.F.R. § 4.71, Plate II. The reports of the veteran's VA medical examinations do not show limitation of left hip flexion to 30 degrees or less. Nor do these medical reports reveal abduction of the left thigh with motion loss beyond 10 degrees. Hence, ratings of 20 percent for the postoperative residuals of a left hip fracture are not warranted under diagnostic code 5052 or 5053. VA X-rays also reveal that here is no malunion of the femur to support the assignment of a 20 percent rating under diagnostic code 5255. The veteran's testimony indicates that the residuals of a fracture of the left femur are more severe than currently rated, but the objective medical evidence indicates that these residuals are manifested primarily by minimal to no evidence of left leg length discrepancy as noted on the reports of the December 1996 and August 1998 VA medical examinations, and slight limitation of external rotation without associated pain or weakness. The veteran testified to the effect that he has left leg pain that produces functional impairment, and this evidence is supported to some extent by the VA medical examinations in 1993 and 1996 that indicate some left thigh pain. However, in April 1998, the Board remanded the case to have the veteran undergo another VA medical examination to determine the severity of the postoperative residuals of a fracture of the left femur, to include functional impairment, and the veteran underwent this examination in August 1998. The report of this VA medical examination indicates that he has pain of the left hip and knee due to arthritis likely caused by aging, and that there is no significant pain in the left thigh. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court), held that in evaluating a service-connected disability, the Board must consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. Here, it appears that the most prominent features of the postoperative residuals of a fracture of the left femur do not include any functional impairment due to pain or weakness, and that these are best evaluated as 10 percent disabling. After consideration of all the evidence, the Board finds that the preponderance of it is against the claim for an increased evaluation for the postoperative residuals of a fracture of the left femur, and the claim is denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased evaluation for postoperative residuals of a fracture of the left femur is denied. J. E. Day Member, Board of Veterans' Appeals